WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 12 13 COURT FILE No.: Toronto 4810 998 21 35004550
BETWEEN:
HIS MAJESTY THE KING
— AND —
PRAVEEN BALAHUMAR
Before: Justice R. Wright
Heard on: March 15 and November 8, 2024 Reasons for Sentence released on: December 13, 2024
Counsel: M. Mandel, counsel for the Crown A. Craig, counsel for the accused Praveen Balahumar
1On March 15, 2024, Praveen Balahumar pled guilty before me to three counts: (1) Being Unlawfully in a Dwelling House; (2) Sexual Assault; and, (3) Forcible Confinement.
2The victim of these offences, E.L., was an 84-year old woman with dementia who lived approximately 500 metres from Mr. Balahumar. Because of her dementia, her sons had outfitted her house with security video so they could monitor her health. It is because of that security video that Mr. Balahumar's crimes were detected. Mr. Balahumar entered her residence through the front door, relying on her dementia to gain entry. He began sexually assaulting her in the kitchen of her residence and forcibly confined her by preventing her from fleeing through a kitchen exit. He continued to assault her in the hallway, eventually pulling her to the bedroom where he forced oral sex and vaginal penetration.
3The Crown seeks a global sentence of 10 to 12 years jail, a DNA order, a 109 Order and a SOIRA Order. The Crown submits that the home invasion aspect of these offences, the vulnerability of the victim, and the impact of the offences support a lengthy sentence for a first-offender.
4The Defence submits that the appropriate range of sentence is three to five years and seeks a sentence of less than two years after credit for restrictive pre-trial release conditions and a recommendation to OCI or similar programming. The ancillary orders are not opposed.
The Offences
5E.L. lived alone in her family home. She was 84-years old and suffering from advanced dementia. Mr. Balahumar lived approximately 500 metres away, and, according to his self-report, had visited her residence on a prior occasion.
6His crimes were recorded on security video that had been set up in the house to allow E.L.'s sons to monitor her health. The video recorded Mr. Balahumar's car pull up to and then park at her residence on Sat., Dec. 25, 2021. He knocked on her door, engaged in a brief conversation with her, and then entered her home.
7Mr. Balahumar began hugging the victim, holding her from behind. They moved into the living room and she can be heard on the video speaking in Hungarian. She moved down the hallway where Mr. Balahumar groped her breast and she moved away from him into the kitchen. He followed, holding her from behind and kissing her neck. He groped her breast, and she cried out in Hungarian, obviously distressed. He held both her breasts and hugged her for more than a minute. She cried out and moved away from him, pulling a chair between them. He moved away and she followed him out of the kitchen into the front hall. She then moved back into the kitchen again; viewing the video, she seems to be wandering around confused and distressed.
8She opened the back door, and he followed her and closed it preventing her from exiting. He gestured for a hug, but she did not hug him. He then groped her from behind. They moved into the hallway, where he pushed her further down the hallway. He knelt with his face in her chest. She cried out and tried to go back to the kitchen, but he held her in the hall. She cried out and he covered her mouth with his hand. She continued to make sounds of distress while her mouth was covered. He pushed her down the hall, knelt, and placed his face in her chest. She struggled; he lifted her shirt, covering her mouth with it. She tried to push his face away from her while he kissed her stomach. This continued for several minutes in the hallway. Mr. Balahumar then forced her into the bedroom. There is no video in the bedroom, but E.L. can be heard crying out further.
9The video is motion-activated. About one hour later, Mr. Balahumar exited the bedroom. He said, “ok, bye, that was really fun.” He went into the bathroom and then back into the bedroom, where he can be heard to say, “bye bye.”
10E.L. came out of the bedroom. She had been wearing an adult diaper when they entered the bedroom one hour prior. She was no longer wearing the diaper. Mr. Balahumar hugged her in the hallway, and said, “ok, bye.” He exited through the kitchen to his vehicle and drove away.
11Police located Mr. Balahumar by the license plate of his vehicle. A search warrant was executed at his home, where the clothing depicted on the video was located. On Dec. 27, 2021, Mr. Balahumar gave a full confession to police admitting to having engaged in cunnilingus, and digital and penile penetration. Male DNA was located on E.L.'s neck swab, anal swab, vaginal swab, and a swab of her external genitalia.
12E.L. had no visible injuries but was hospitalized following this incident with emotional issues. Very tragically, E.L. died in hospital a few weeks later. She had tested positive for COVID-19 and died January 18, 2022.
Victim Input
13I received a Victim Impact Statement from E.L.'s son L.L. Unsurprisingly, he blames Mr. Balahumar for his mother’s death in hospital. He recounts the anxiety and sleeplessness that he suffered following the discovery of the crimes against his mother, and the feelings of inadequacy and shame thinking he could have done more to prevent what happened. He has lost faith in strangers. He believes the worst of people; that they will find and prey on the weak and defenseless.
The Offender
14Mr. Balahumar is 32-years old. He has no prior criminal record. He reports being a moderate drinker, having cut back significantly since his arrest, and using cannabis twice a week. Cannabis increases his sexual drive.
15Mr. Balahumar has been on restrictive house arrest conditions since January of 2022. In that time, he has completed some financial services courses and been working for his father from the family home, assisting in his financial planning work. If it were not for this sentence, which will hamper any such career, he states that he would like to have followed in his father’s field of financial planning.
16Prior to the charges, he had a varied work history. He completed high school and attended Seneca College for computer programming and Centennial College for Architectural Technology, but left his studies to focus on a music career in 2011. Between 2014 and 2016 he worked at the Rogers Centre, in the parking department. He then worked at two different grocery stores for approximately one year. In 2017 he worked at a t-shirt printing store. In 2018 at a Cineplex. A takeout salad shop and a pizza restaurant followed. In 2020 he began working at a cosmetics packaging company, but was off work for several months due to the COVID-19 pandemic. He then worked for a few months at a gift basket company. In the summer of 2021, he began working as a delivery driver, which he did until his arrest.
17He underwent a psychiatric assessment with Dr. Julian Gojer, the Report of which was filed as an Exhibit on sentencing. He recounted a prior encounter with the victim in this matter. He also detailed for Dr. Gojer some prior sexual behaviours. I have had the benefit of reviewing that report.
18While on release, Mr. Balahumar has become more active in his church and has been engaging in daily prayer and spiritual videos. He has been trying to improve himself through self-help books. He attended for therapy, commencing with a walk-in clinic with psychiatric services before being referred by Dr. Gojer to a psychologist, Dr. Monik Kalia. Mr. Balahumar attended for 15 sessions between July 31 and September 25, 2024. His psychological therapy has focused on the role of thinking errors in his sexual offending, consent, managing sexual fantasy, understanding healthy relationships and healthy sexuality, victim empathy, risk factors, and relapse prevention. Dr. Kalia reports that Mr. Balahumar showed good understanding of how compulsive behavior led to the escalation of his fantasies, resulting in a desensitization to the harm caused to others, and how his disregard for issues related to consent, combined with a focus on self-gratification, the objectification of females, and sexual compulsivity, contributed directly to his offending.
19Regarding the prior incident of visiting the victim, Mr. Balahumar reported to Dr. Gojer having walked past E.L.’s residence a couple of years prior to the offences. He saw her outside gardening. He walked into her house, and she followed him inside. She did not speak English. He showed her pornography that he described as “granny porn.” He left when someone knocked on her door.
20On the day of the offences, Mr. Balahumar remembered E.L. while out driving, and decided to drive to her house. He had been drinking. He told Dr. Gojer that he had no intention of doing anything “sexual,” but he attended her residence after having been refused sex by a woman he was seeing. He told Dr. Gojer he was driving around horny and wanted to hook up with someone. Mr. Balahumar stated that he “basically forced my way to having oral sex with her" and that he “really wanted to give oral sex that night.” He was asked what the victim was doing while he was doing this and Mr. Balahumar stated, “she was making noises and saying stuff in her language.” Mr. Balahumar was asked if her tone of voice and demeanor seemed encouraging or discouraging of the attention he was giving her. Mr. Balahumar answered, “discouraging, I guess.” Mr. Balahumar stated, “once I started more, she seemed to just give up.” Mr. Balahumar was asked what giving up looked like, and he said, “not trying to resist me.”
21Mr. Balahumar told Dr. Gojer that he performed oral sex on the victim, kissed her body and nipples, and then put her clothes back on. He stated that he tried to perform penetrative sex but could not get an erection. I note that this self-report of his conduct is different than what he reported to police and what he agreed to in the facts of his guilty plea; it appears a minimization of the conduct he had admitted to the police and the Court.
22Mr. Balahumar told Dr. Gojer that he did not realize at that time that he was sexually assaulting E.L. When asked by Dr. Gojer how he feels about his behaviour towards the victim, both at the time of the assault, and presently. Mr. Balahumar stated, “[the morning after the assault he] felt happy because I got what I wanted, I got to eat some granny pussy, that’s what I was searching for. I had seen videos online. I thought ‘okay, I did it’. I got what I wanted. I guess you could say I was kind of proud of it. When you want something and you get it, you’re going to be proud of yourself in a sense, right?” As for presently, he stated that he knows it was wrong, and wishes he had never gone to her home.
23Mr. Balahumar was asked if he knew his actions were wrong at the time of the offence and stated, “no, in my mind, I made her feel good, when was the last time she got anything like that, you know? And I thought she liked it. In my mind, it was just like another hookup.” Mr. Balahumar was reminded that he had acknowledged that the victim was discouraging of his affection and resisted him to the point of eventually giving up. Mr. Balahumar was asked to explain this contradiction, how he could believe the victim was enjoying the sexual attention, but also recognized that the victim was attempting to resist him and was not encouraging of the attention. Mr. Balahumar responded that later in the sexual activity E.L. appeared to be moaning as if she “enjoyed” the oral sex. According to Dr. Gojer, he still believes that she went along with the sexual activity and she likely pressed charges at the insistence of her children.
24Mr. Balahumar reported to Dr. Gojer that some of this employment instability pertained to being fired from his job on seven occasions for bothering female coworkers and using inappropriate language with female coworkers. He reported that he told various female coworkers that he wanted to have sexual relations with them, showed a female coworker a pornographic video, and showed a personal explicit video of himself and a girlfriend to a female coworker.
25Dr. Gojer assessed Mr. Balahumar’s diagnosis, future risk and treatment needs. He notes:
Over the years he has had a wide range of deviant sexual behaviors that have included exhibitionistic behaviors, sexually intrusive behaviors that have been socially unacceptable but falling short of criminal charges. He has had compulsive sexual behaviors seeking sexual gratification whenever he could from indiscriminate sources. To further compound his sexually compulsive behaviors, he also developed an erotic preference for older women and has had a problem with gerontophilia. This culminated in the sexual assault with the victim. It is likely that in 2018 he had intentions or expressing this gerontophililc interests with her but was cut short by external distractions. While he denies that this is a problem now, this interests needs to be examined and dealt with in therapy. He also has a pathological use of pornography.
I see him as suffering from multiple paraphilic interests and a diagnosis of Paraphilia that is unspecified will capture his compulsive sexual behaviors, use of pornography, sexually intrusive behaviors and gerontophilic interests. His intrusive behaviors also raise concerns that he maybe having a coercive paraphilic erotic preference.
Mr. Balahumar has had a problem with drinking to excess and while he is not drinking to excess at this time, he should be involved in a drinking cessation program.
26Mr. Balahumar completed a relapse prevention plan, which Dr. Gojer describes as a “work in progress.” It could be described in less generous terms as somewhat naïve. Much of the plan revolves around creating a stable relationship with a single partner and filling his time with that relationship and hobbies. While certainly a sign of some progress, in my view, Mr. Balahumar’s relapse-prevention plan requires significant further work.
27Mr. Balahumar was assessed on several risk assessment instruments that included the PCL R, the Static 99R, and the Risk for Sexual Violence Protocol. Dr. Gojer rated him 16 on the PCL R, a score that is indicative of problematic behaviors of an antisocial nature. On the Static 99R he scored in the moderately high range. This instrument does not account for the presence of sexual deviations and does not address seriousness of offending. Dr. Gojer opines:
The presence of multiple deviant sexual interests, escalation of behaviours, targeting a vulnerable population of females, need for greater understanding of deviant sexual interests, cognitively distorted perceptions, improvement in the concept of boundaries, victim empathy and actually establishing a stable lifestyle are all relative factors that contribute to a risk that is fluid. His moderately high risk can become high when he is bored, drinking, using more pornography or under stress. Engaging in intensive sex offender counseling individually and in group is needed to attenuate risk along with extended follow up.
It appears that he has been able to abide by his bail restrictions and chose to participate in counseling and has shown benefits in treatment. This augers well and points to the potential that his risk can actually be attenuated. The presence of a supportive family and that they will assist him with career enhancement is also a positive risk mitigating factor.
28Dr. Gojer recommends further testing to determine if Mr. Balahumar has a coercive sexual interest, abstaining from drugs and alcohol, a trial of stimulants for his attentional problems, participation in formal sex offender programming such as is offered in the penitentiary or at OCI, and follow-up supervision on probation or parole to ensure that the gains made in treatment while in custody are translated into actual change in the community. Once in the community, Dr. Gojer recommends individual and group counseling to address sexual behaviors, substance use and follow up with a psychiatrist to moderate his future risk.
Applicable Sentencing Principles
29Section 718.1 of the Criminal Code of Canada (“Code”) states that the fundamental principle of sentencing is proportionality. To be a fit sentence the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
30Ss. 718.2 and 718.04 of the Code set out a number of other considerations:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation
shall be deemed to be aggravating circumstances.
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
31Other aggravating and mitigating factors and the offender’s personal circumstances must be considered, but “[w]here Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority”: R. v. Friesen, 2020 SCC 9, at para. 104. In Friesen, at para. 89, the Supreme Court also stated that sexual violence is morally blameworthy because “the offender is treating the victim as an object and disregarding the victim’s human dignity." That description seems particularly germane in this case, as the victim was not in any position to consent due to her advanced state of dementia, yet she still protested, and Mr. Balahumar persisted in using her for his own sexual gratification.
32Even in a case involving a youthful first-time offender, in cases of sexual violence, the court’s emphasis must remain on denunciation and general deterrence. These sentencing principles take on increasing significance as the seriousness of the violation of the sexual integrity of the victim rises: see R. v. Thurairajah, 2008 ONCA 91, at para. 42. Rehabilitation, while still important, takes on less weight accordingly: see also R. v. Mohenu, 2019 ONCA 291, at para. 12.
33Over thirty years ago, the Supreme Court of Canada commented on the devastating effects of sexual violence on women. In R. v. McCraw, [1991] 3 S.C.R. 72 at 83-84, the court wrote:
It seems to me that to argue that a woman who has been forced to have sexual intercourse has not necessarily suffered grave and serious violence is to ignore the perspective of women. For women rape under any circumstance must constitute a profound interference with their physical integrity. As well, by force or threat of force, it denies women the right to exercise freedom of choice as to their partner for sexual relations and the timing of those relations. These are choices of great importance that may have a substantial effect upon the life and health of every woman. Parliament's intention in replacing the rape laws with the sexual assault offences was to convey the message that rape is not just a sexual act but is basically an act of violence…
34Recently, in R. v. A.J.K., 2022 ONCA 487, the Ontario Court of Appeal held that the forced penetration of another person will typically result in a sentence of between three and five years in a penitentiary. The Court stated the following about the terrible nature of sexual assaults, recognizing the continuing evolution of our collective understanding in this regard (at para. 74):
All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.
See also R. v. R.S., 2023 ONCA 608.
35In R. v. Blazevic and Baba, 2012 ONSC 875, at para. 62, Riccetti J. noted that there is a very broad range of sentences for forcible confinement. The sentence will depend on the extent or degree of the confinement and the circumstances surrounding why and how it occurred. The low end of the sentencing range is normally 12-months jail, and can extend into an upper range of over four years in a penitentiary.
36The combination of s. 719(3) of the Code and R. v. Summers, 2014 SCC 26, entitles offenders to a maximum credit of 1.5 days per real day of custody. Mr. Balahumar served 34 days of real pre-sentence custody. That means any sentence of imprisonment is to be reduced by 51 days.
37The Defence also seeks Downes credit for Mr. Balahumar's time on pre-trial release. The law on Downes credit was helpfully summarized in R. v. Joseph, 2020 ONCA 733, as follows:
The propriety of treating "stringent bail conditions, especially house arrest", as a sentencing consideration was affirmed in R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33. Although it is not uncommon to speak of providing "credit" for stringent bail conditions"pre-trial bail is conceptually a mitigating factor" in assessing a fit sentence: R. v. Panday (2006), 205 C.C.C. (3d) 488 (Ont. C.A.). Mitigation is given because stringent bail conditions can be punitive and therefore "akin" to custody: Downes, at para. 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, 2020 ONCA 546, at para. 20. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge: Downes, at para. 37.
Analysis
38Mr. Balahumar’s crimes are disturbing and reprehensible. The portions that were captured on video and presented to the Court are shocking and demonstrate a callous disregard for E.L.’s emotional well-being and personal autonomy. I have cautioned myself against over-reliance on the video given its capacity to inflame. Rather, I have focused on the aggravating and mitigating features of Mr. Balahumar’s offences and his personal circumstances to determine the appropriate sentences for his conduct.
39There are a number of aggravating features in this case:
(1) Vulnerability: E.L. was 84-years old and suffering from advanced dementia. Mr. Balahumar used this vulnerability to gain entry to her home, to confine her in that home, and to sexually assault her for more than an hour. He further used her physical weakness to overpower her and prevent her from fleeing, making this feature even more aggravating;
(2) Home invasion: while not the same level as a forced entry, Mr. Balahumar gained entry because of E.L.’s circumstances. He was not wanted in the residence. One of the offences he has been found guilty of is forcible confinement under s. 279(2). S. 348.1 of the Code mandates that home invasion is an aggravating circumstance on a sentence for that section where the accused knew that the dwelling was occupied, and violence was used. Sexual assault is a crime of violence. I am therefore considering the home invasion as an aggravating feature on the charge of forcible confinement;
(3) Her own home: for the offence of sexual assault, I consider the location an aggravating feature. The sexual assaults occurred in her own residence where she was isolated. They occurred in her own room where she should have been able to feel free from violence. In R. v. Corbiere, 2012 ONSC 2405, at para. 44, Pomerance J. (as she then was) held that the “targeting of the victim in her own home is a significant aggravating factor exacerbating the trauma and impact on the victim. The home is a protective haven; a place where we should all expect to feel safe”;
(4) Significant impact: I am not sentencing Mr. Balahumar in relation to E.L.’s death, but I do agree that it is appropriate to consider the impact that this had on E.L. as an aggravating feature. She was an elderly woman with dementia, but she had been living in her own home, healthy, and able to remain so with the assistance of her sons. These crimes led to emotional distress so significant that she had to be hospitalized (which led to her death weeks later). Her sons lost their mother and L.L. has lost his faith in strangers. In my view, this is precisely the type of impact contemplated by s. 718.2 (a)(iii.1) of the Code.
40There are also a number of mitigating factors:
(1) Guilty plea and remorse: Mr. Balahumar has plead guilty to the charges before me, and has expressed his remorse. He has saved the Court the time that would have been necessary to try this matter and spared the victim's family from having to proceed through a trial. This factor is entitled to somewhat less weight in this case, as it was an overwhelming case. But I note Mr. Balahumar admitted his involvement from the beginning;
(2) Lack of prior record: Mr. Balahumar is a first-offender. I must give effect to the principal of restraint;
(3) Mr. Balahumar's rehabilitative potential: he is not a young man, but he has strong support from his parents and his church. During the psychiatric and psychological interviews, he has shown some insight into his offending. I believe him to have rehabilitative potential. I have some caution about giving this factor too much weight given the minimization of his offending to Dr. Gojer, and some of his other self-reports. While there is reason for optimism, he will require significantly more work to realize his rehabilitative potential and to minimize his future risk;
(4) Family and community support: the support of his parents, church and community all speak well for him and support his rehabilitative potential; and,
(5) Restrictive pre-sentence release conditions: the punitive nature of his house-arrest condition is a factor in mitigation.
41In my view, the sentence I impose on Mr. Balahumar must denounce his conduct, deter him from future offending, deter others from similar offending, separate Mr. Balahumar from society for a time and permit for intensive sex offender treatment, and it must aid in his rehabilitation. It must also promote a sense of responsibility in Mr. Balahumar and acknowledge the harm done to E.L., her family, and their community. While these principles require a jail sentence, it must not be longer than is necessary to meet these principles.
42I have reviewed the additional sentencing authorities provided by both counsel as relating to the range of sentences imposed on offenders for sexual assaults in the course of home invasions or on vulnerable victims. Of course, no two cases are the same. The authorities relied on by the Crown contain more aggravating features. The authorities relied on by Mr. Balahumar do not relate to unlawful invasions of the homes of the victims, and significant forcible confinements within. Mr. Balahumar must be sentenced proportionate to the gravity of his offences and his degree of responsibility.
43I agree with Mr. Balahumar’s submission that the range of sentence for a sexual assault is generally three to five years. However, Mr. Balahumar is also to be sentenced for unlawfully invading E.L.’s home and forcibly confining her there.
44While I view this as a crime of home invasion, it is not the same type of invasion considered in R. v. Rading, 2017 ONSC 7020, which the Crown relies on, where the court considered a range of sentence as between five and nine years. Mr. Balahumar’s crime is being unlawfully in the residence to commit his offences; that offence is a lesser crime than breaking and entering with intent, which is punishable by a maximum of life imprisonment. I must also be cautious not to double penalize Mr. Balahumar by using the home invasion as an aggravating feature and grounds for a separate sentence.
45While the Rading decision has many factual similarities in the offending, there are many differences when it comes to the offender. Mr. Balahumar has no prior criminal record. He has shown insight and rehabilitative potential and begun receiving counselling. While he needs more treatment, there is significant mitigation in these steps.
46In my view, balancing the mitigating and aggravating features that I have outlined, a penitentiary sentence is necessary to give proper effect to the principles of sentencing. An appropriate total sentence in this case is one of six-and-a-half years incarceration. I recognize that this is outside of the typical range for a “serious sexual assault” as upheld by the Court of Appeal in R. v. A.J.K., 2022 ONCA 487 and R. v. R.S., 2023 ONCA 608, but a sentence beyond that range is necessary to reflect the significant vulnerability of this victim, and the invasion of her home. Despite the many mitigating features, a shorter sentence would not appropriately account for these factors.
47Mr. Balahumar has spent 1415 days, almost four years, on restrictive pre-trial release conditions of house arrest. The level of restriction was very high: his conditions prohibited him from leaving his residence unless he was in the company of a surety and only then for medical emergencies, attending Court or counsel's office, or attending programming. He has been able to complete some courses while confined, and also to work with his father, but this has still been a significant restriction on his liberty for a considerable period of time. I appreciate that some of the delay in the matter has been caused by his requests to seek funding for counsel and for the completion of the psychiatric report, and have taken that into consideration. In my view, the restrictive bail has been punitive in nature, and warrants a reduction in his sentence of 466 days.
Sentence
48The total sentence will be six-and-a-half years (2372 days) less credit for 51 days credited as PSC and 466 days for restrictive bail conditions, leaving 1855 days (approximately five-years-and-one-month) to serve.
49To properly reflect the principle of totality, in accordance with R. v. Ahmed, 2017 ONCA 76 and R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.), the sentence will be recorded as:
(1) Sexual Assault: 2372-days custody (six-and-a-half years) less credit for 517 days, leaving 1855 days to be served;
(2) Unlawfully in a Dwelling: Two-years custody, concurrent;
(3) Forcible Confinement: 18-months custody, concurrent.
Ancillary Orders
50The Crown seeks ancillary orders which were not opposed.
51Pursuant to s. 109(2) of the Code, Mr. Balahumar is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years and from possessing a prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
52DNA: sexual assault and forcible confinement are primary designated offences for the purposes of the DNA provisions. Mr. Balahumar is ordered to provide such samples of his bodily substances as are reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act in relation to these charges.
53SOIRA: s. 490.013(2)(b) applies. Mr. Balahumar is ordered to report for 20 years.
54I am satisfied that the Victim Fine Surcharge would amount to an undue hardship on Mr. Balahumar, given his lack of employment prior to custody, the restrictions on his liberty when he was on release, and the impacts of these convictions on his future employment. It is waived.
Released: December 13, 2024 Signed: Justice R. Wright